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Tuesday
Jun292010

Mind Your Peas and Queues at the Supreme Court: Reconciling Rent-a-Center with Citizens United, Part II

The majority in Rent-a-Center, West, Inc.  v. Jackson, focused in on the fact that in his motion to dismiss and in his appeal to the 9th Circuit, Mr. Jackson had challenged the whole arbitration agreement but had failed to single-out the specific language that compelled arbitration.  Thus the majority insisted that challenging the whole arbitration agreement wasn’t good enough; Mr. Jackson should have challenged the portion of the arbitration agreement known as a “delegation provision.”  

Distortion of Precedent:
The majority claimed that their decision was supported by Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967). However, that more than 40-year-old decision, involved a consulting agreement between two businesses in which there was an arbitration provision. In contrast, the entire four-page agreement Mr. Jackson signed was a stand-alone arbitration agreement.  And, the agreement in the Prima case was between two businesses, presumably with more balanced power than an employee would have on his first day of work, handed a boiler plate agreement that he is required to sign as a condition of employment.

Childish Reasoning:
The majority’s reasoning resembles a child arguing that there are two ways to ask him to finish his vegetables. One way is to specifically say, “Please finish your peas.” A second way is to say, “Please finish your meal."  When the parent asked the second way and does not mention the peas specifically, the child insists there is no need to eat them.  And, that is not even the worst of it. The opinion is even more juvenile than that.  Eventually, Mr. Jackson did indeed challenge the delegation provision. In other words, on appeal to the Supreme Court, his lawyer asked in the right way. However, the majority decided it was too late for him to raise the claim.



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